ELDA SOKOLOFF v. THE KAMSON CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4812-08T34812-08T3

ELDA SOKOLOFF,

Plaintiff-Appellant,

v.

THE KAMSON CORPORATION,

Defendant-Respondent.

______________________________________

 

Argued June 2, 2010 - Decided

Before Judges Carchman, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4539-07.

George R. Szymanski argued the cause for appellant.

Alec Frick argued the cause for respondent (Gage, Fiore & DiSarno, attorneys; Mr. Frick, on the brief).

PER CURIAM

Plaintiff Elda Sokoloff appeals from an adverse jury verdict on her claim of personal injuries resulting from a fall on ice on defendant's property. Because the court gave incorrect jury instructions despite plaintiff's objections, we reverse and remand for a new trial.

Plaintiff, sixty-six years old at the time, lived with her daughter, Regina DiEva, in a leased townhouse in a complex owned and managed by defendant The Kamson Corporation. Her lease placed responsibility on defendant-landlord to clear snow and ice from all outside areas, including the parking lot and all walkways.

On February 11, 2006, a blizzard left a large accumulation of snow. The next day, defendant's maintenance personnel plowed the center of the parking lot but did not shovel any walkways. Plaintiff and her daughter thought it was the tenants' responsibility to clear the walkways from their townhouses to the parking lot because defendant's maintenance crew typically did not clear them. DiEva shoveled the walkway to the parking lot and the area around plaintiff's car. She also spread salt. Plaintiff assisted to some extent with the shoveling.

On February 13, plaintiff walked out of her townhouse intending to go to the post office. As she was approaching her car in the parking lot, she slipped on black ice and broke her pelvis. Five days later, she developed a massive blood clot. At trial, she alleged her injuries have permanent sequelae and have prevented her from returning to her prior employment as a furniture salesperson.

On the day of the accident, DiEva noted and took photographs of the condition of the parking lot and surrounding area where plaintiff fell. Plaintiff alleged at trial that defendant's employees had placed a PVC pipe extender onto the end of a downspout, dispersing storm water from the roof of the adjacent townhouse. The extender pipe led directly to the parking lot, rather than emptying into a dirt area. Consequently, plaintiff alleged defendant had caused water from the neighbor's roof to flow into the parking lot and freeze near her car.

Plaintiff filed suit in August 2007 against defendant-landlord alleging that negligent maintenance of the property proximately caused her injuries. A jury trial was conducted in August 2009. Other than a medical expert, the only witness for the defense was defendant's property manager, who conceded that defendant was responsible for clearing the walkways and the areas between parked cars. The property manager also testified the landlord had no objection to tenants shoveling their own walkways and around their cars.

During its deliberations, the jury asked several questions pertinent to the issues on appeal. It then found defendant 25% negligent and plaintiff 75% negligent. Because plaintiff's negligence was more than 50%, plaintiff could not recover any damages. See N.J.S.A. 2A:15-5.1.

On appeal, plaintiff contends the trial court erred in its jury charge and in permitting the jury to consider comparative negligence when there was no evidence of her negligence.

We find no merit in the latter contention because comparative negligence was a disputed issue in the case. "One's right to protection from the negligence of others carries with it the duty of reasonable care for one's own safety. The inquiry is whether the traveler, by the exercise of ordinary or reasonable care, would have discovered the danger and avoided it." Milstrey v. City of Hackensack, 6 N.J. 400, 412 (1951) (negligence alleged in condition of public sidewalk).

In this case, plaintiff was aware of the recent snowfall. She admitted she did not look at the ground while walking to her car but was looking at the car and getting her key when she fell. The jury could conclude that she did not pay adequate attention to the condition of the parking lot and was not cautious for her own safety in ice and snow conditions. The trial court did not err in allowing the defense of comparative negligence to be decided by the jury.

The court erred, however, in its instructions to the jury. Relying on the evidence that plaintiff and her daughter had shoveled the walkway and around the car, defendant requested that the court charge the jury in accordance with Model Jury Charge (Civil) 5.10C, "Undertaking Voluntarily Assumed" (1984). Plaintiff objected to the charge. The court granted defendant's request and charged the jury essentially in conformity with the model charge as follows:

One who in the absence of a legal obligation to do so voluntarily undertakes to render a service for protection or the safety of another may become liable for failure to perform or failure to exercise reasonable care in the performance of that service. His or her responsibility, however, is only commensurate with the extent of his or her voluntary undertaking, and his or her liability does not arise unless it appears from the evidence that that negligence had a proximate causal relationship to the occurrence of the accident which brought about the injuries.

During deliberations the jury asked the court to re-read the law regarding the "assumption of liability." The court re-read the above-quoted instruction as well as its instruction on forseeability. See Model Jury Charge (Civil) 5.10B, "Forseeability" (1984).

The jury then sent another question: "[D]id the plaintiff assume the liability from Kamson once she started to shovel herself? . . . [I]f you can't tell us yes or no, please, re-read the charge." In response to the question, the court told the jury "that's for you to determine." The court also re-read the charge. At plaintiff's request, and in reference to plaintiff's "liability" for undertaking to shovel the snow herself, the court also added to its instruction: "his or her liability does not arise unless it appears from the evidence that they were negligent."

Our standard of review on this issue is plenary because it presents a question of law whether a charge for "Undertaking Voluntarily Assumed" should have been given in the factual circumstances of this case. We hold that the charge did not apply to the facts of this case.

[T]he jury charge should set forth in clear understandable language the law that applies to the issues in the case. . . .

In construing a jury charge, a reviewing court must consider the charge as a whole to determine whether the charge was correct. When a party objects at trial, a reviewing court should reverse on the basis of that challenged error unless the error is harmless.

[Toto v. Ensuar, 196 N.J. 134, 144 (2008) (citations omitted).]

Error in the jury charge is reversible if "clearly capable of producing an unjust result." R. 2:10-2; Toto, supra, 196 N.J. at 144. As demonstrated by the jury's requests and questions during deliberations, the erroneous charge in this case clearly influenced its verdict and was capable of producing an unjust result.

The quoted charge tracks language employed in Gudnestad v. Seaboard Coal Dock Co., 27 N.J. Super. 227, 233 (App. Div. 1953), rev'd in part on other grounds, 15 N.J. 210 (1954). That case, like every other case that addresses voluntary assumption of a duty, refers to liability of a party to another party, not responsibility for one's own injuries. See, e.g., Velazquez v. Jiminez, 172 N.J. 240, 263 (2002) (assisting physician's liability, in view of Good Samaritan Act, N.J.S.A. 2A:62A-1, for injuries suffered by patient in hospital); Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 327-28 (App. Div.) (building supplier's voluntary undertaking to advise customer about the amount of bracing needed on a truss order), certif. denied, 146 N.J. 569 (1996); Berry v. Playboy Enters., Inc., 195 N.J. Super. 520, 528-29 (App. Div. 1984) (employer's liability for negligent advice to employee regarding medical benefits), certif. denied, 99 N.J. 231 (1985); O'Neill v. Suburban Terrace Apts., Inc., 110 N.J. Super. 541, 545 (App. Div.) (potential liability to tenant if landlord voluntarily undertook to clear snow from adjacent walkways that landlord otherwise did not have a duty to clear), certif. denied, 57 N.J. 138 (1970); Johnson v. Souza, 71 N.J. Super. 240, 242-43 (App. Div. 1961) (homeowner's liability to guest in voluntarily undertaking to salt icy steps), certif. denied, 36 N.J. 598 (1962); Wolcott v. N.Y. & Long Branch R.R. Co., 68 N.J.L. 421, 423 (Sup. Ct. 1902) (railroad's liability to decedent when railroad's flagman undertook to warn of oncoming train on another railroad's tracks).

Defendant has not pointed to, and our independent research has not found, any case where the legal principle stated in the disputed charge has been applied to the comparative negligence of an injured plaintiff. In fact, the charge by its own terms refers to one who "undertakes to render a service for protection or the safety of another," and liability to that other person. In this case, there was no issue of plaintiff's undertaking to protect the safety of another, or her liability to another.

The trial court was persuaded to give the disputed charge because plaintiff's daughter undertook to shovel snow, and defendant alleged that she may have done so negligently. But plaintiff's daughter was not a party in this case and, as a result, could not be held liable to plaintiff. The dispute was between plaintiff and defendant only.

Nor could any alleged negligent shoveling or salting by the daughter be attributed to plaintiff herself. There is no principle of law that would have made plaintiff vicariously "liable" to herself for the actions of her daughter.

The misapplication of this charge to the issue of plaintiff's potential comparative negligence was reinforced when the jury asked whether plaintiff "assume[d] the liability from Kamson once she started to shovel herself?" (Emphasis added.) The court answered that the question was for the jury to determine. However, the jury's question indicated that it may have misinterpreted the instruction as allowing a defense in the nature of the common law defense of assumption of risk. Long ago, our case law discarded that defense as having been subsumed within the defense of contributory, and later comparative, negligence. See McGrath v. Am. Cyanamid Co., 41 N.J. 272, 275-76 (1963); Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 54-55 (1959); see also Model Jury Charge (Civil) 5.11, "Assumption of Risk In the Primary Sense" (Note to Judge) (2001) ("[E]xcept in cases where there is a statutory foundation, the defense of assumption of risk is not a valid defense in the normal negligence action.").

Accurately stated, the issue that the court was apparently leaving for the jury to decide was whether plaintiff was comparatively negligent because she negligently shoveled the walkway and parking lot, leaving an icy condition. As plaintiff argues correctly, there was no evidence on this record of negligent shoveling by plaintiff. Defendant neither presented any evidence nor argued to the jury that plaintiff had done anything careless in attempting to assist her daughter in clearing the area around her townhouse and car. In fact, the evidence at trial was that plaintiff minimally assisted. The burden of proof as to comparative negligence of plaintiff was on defendant. Defendant did not prove plaintiff's negligence in shoveling. In determining plaintiff's comparative negligence, the jury should not have been permitted to speculate about alleged negligent shoveling by plaintiff.

Because the jury's verdict was based on improper considerations, plaintiff is entitled to a new trial.

Additionally, the trial court denied plaintiff's request to charge the jury that plaintiff did not have the burden of proving defendant was on notice of the icy condition in the parking lot if defendant itself had created that condition. Plaintiff requested Model Jury Charge (Civil) 5.20F9, "Notice Not Required When Condition is Caused by Defendant" (2003). That model charge states in relevant part:

If you find that the land . . . was not in a reasonably safe condition and that the owner . . . or [its] agent, servant or employee created that condition through [its] own act or omission, then, in order for plaintiff to recover, it is not necessary for you also to find that the owner . . . had actual or constructive notice of the particular unsafe condition.

The trial court declined to give the charge because it found the dangerous condition was the ice near plaintiff's car, which was a condition of nature.

But the requested charge was applicable to plaintiff's contention that the pipe extender placed by defendant's agents on the neighbor's downspout was the cause of the icy condition near her car. It was for the jury to decide whether defendant had created the icy condition in the parking lot by placing the extender where it did and causing water to flow and freeze in the parking lot. The court should have given the requested charge, tailoring it to the specific factual contention that was arguably supported by plaintiff's evidence and allegations.

Reversed and remanded for a new trial.

 

The facts of O'Neill, supra, 110 N.J. Super. 541, resemble this case. There, too, the plaintiff had undertaken to shovel snow that the landlord had not cleared. In discussing voluntary assumption of liability, the court never referred to the plaintiff as voluntarily undertaking responsibility for her own injuries by shoveling. Rather, the issue was whether the legal principle stated in the disputed jury charge would apply to the landlord for clearing of areas that it did not have a duty to clear. Id. at 545.

We do not address whether defendant had a non-delegable duty to clear the snow and ice conditions, which would have made it liable even if plaintiff and her daughter undertook to perform that duty. See, e.g., Brown v. Racquet Club of Bricktown, 95 N.J. 280, 299 (1984); Mayer v. Fairlawn Jewish Ctr., 38 N.J. 549, 555 (1962); De Los Santos v. Saddlehill, Inc., 211 N.J. Super. 253, 261-62 (App. Div. 1986), certif. denied, 107 N.J. 101 (1987); Gill v. Krassner, 11 N.J. Super. 10, 15 (1950). Plaintiff has not raised that issue, and it has not been argued in the briefs.

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A-4812-08T3

August 13, 2010